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Are judicial elections a fraud on voters? (By Aram James)

As we head into the November 4th election, let’s take a look at the election process involving judicial candidates. Are we the public getting a fair shake from the candidates? Are we being as fully informed on the issues as the First Amendment allows? Or are the candidates for judicial office playing the public and the voters for fools?

In 2002, the U.S. Supreme Court in a 5-4 decision, in Republican Party v. White, 536 U.S. 765, struck down Minnesota’s so-called announce clause, a portion of a judicial canon that prohibited candidates from announcing their views on the hot button and disputed legal, political and social issues of the day.

The rationale for the announce clause being that any candidate, who publicly expressed his or her views on controversial issues, would be precluded from hearing cases involving similar issues, once they took the bench, on the theory that having once expressed a view on a given issue, that might later come before the candidate on the court, would evidence a disqualifying bias.

The White court explicitly shot down this reasoning, declaring the announce clause unconstitutional and violative of the First Amendment.

California had a similar provision limiting candidates from addressing the controversial issues of the day. Subsequent to the White decision California’s Code of Judicial Ethics eliminated its own “announce clause.” The Supreme Court’s holding in White, written by Justice Antonin Scalia, could not be clearer: “The Minnesota Supreme Court’s canon prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment.”

In an equally clear statement in Justice Anthony Kennedy’s concurring opinion in White, he said, ”The political speech of candidates is at the heart of the First Amendment, and direct restrictions on the content of candidate speech are simply beyond the power of the government to impose.”

The First Amendment concerns addressed by the court in White were not just the candidates’ rights, but the rights of the citizens as well: the right to be as fully informed (as possible) of the candidates’ views, on the critical issues of the day, before casting their vote.

A compelling quote in the majority opinion in White drives home this point:
“The greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the state chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process … the First Amendment rights that attach to their roles.”
As a citizen and as lawyer, I have put forth my best efforts to draw out the judicial candidates post White, over numerous election cycles, asking the candidates to really inform the citizens about their thinking process on the issues, issues like the death penalty, our current homelessness crisis, mass incarceration, which is disproportionally visited on the poor and communities of color, gay marriage, reparations for African Americans, race based jury nullification and other controversial issues. But sadly I can say, thus far, I have mostly failed in my efforts.

Instead of complying with the mandate of White, the candidates — almost without exception — balk at answering the hard questions and issues, often acting as thought the White decision didn’t exist and the “announce clause” remains in full force.
The candidates often reply that they can’t give their views on the issues, because to do so would run afoul of California Code of Judicial Ethics.

This is simply not true. The prohibition set out in the California Code of Judicial Ethics, and consistent with the White decision, is a prohibition on promising or committing to decide a case or issue in particular manner, the so called “commit or promise clause,” but no similar prohibition remains that prevents candidates from giving their personal views on the issues.
The truth is the White decision (whether the ABA Committee on Judicial ethics or the California equivalent, likes it or not) gives the candidates extremely wide latitude to fully inform the voters of their views on the most controversial of issues, so long as they don’t violate the “commit clause.”

Everyone in the judicial system knows this is the law, but most pretend that the “announce clause” is still in place, all to the extreme detriment of the voters’ First Amendments rights and to what could otherwise be a vital, educational and robust election process.

More often than not, in the current climate of hide-the-ball from the voters, judicial races turn into mind numbing voter turn-off contests, a race to the bottom between the candidates as to which one can accumulate the longest list of law enforcement and judicial endorsement, almost like addressing the substantive issues of the day is of no importance.
In other words, educating the public on substantive issues be dammed! It’s all about winning!

Given the White mandate — that voters have a First Amendment right to be fully informed on the issues before they exercise their franchise for a particular candidate — any judicial candidate who purposely engages in the obstruction of our democracy, by pretending that they can’t address the hot button issues of the day is, without a doubt, unfit to serve in the critical role judges are supposed to play in our society: helping to define and shape justice in our communities. It’s time we the public, including pro-democracy lawyers and judges, unmask the charade engaged in by most judicial candidates, and speak out against such voter fraud.

It’s past time we put the mandate of the White decision into play.

This piece originally appeared in the Daily Journal. Aram James is a retired Santa Clara County deputy public defender and a cofounder of the Albert Cobarrubias Justice Project (ACJP)